Henderson v. Lankford et al

Filing 72

ORDER signed by Magistrate Judge Kendall J. Newman on 03/26/15 ordering this action is dismissed without prejudice pursuant to FRCP 41(b). CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY HENDERSON,

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Plaintiff,

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No. 2:12-cv-2317 KJN P

v.

ORDER

DR. R. LANKFORD,

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Defendant.

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Plaintiff is a former state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff consented to proceed before the undersigned for all

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purposes. See 28 U.S.C. § 636(c). On October 17, 2014, defendant filed a motion for summary

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judgment. On October 17, 2014, plaintiff was advised of the requirements for opposing a motion

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pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d

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952, 957 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.

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1988).

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On March 4, 2015, after receiving three extensions of time (ECF Nos. 64, 66, 70), plaintiff

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was ordered to file an opposition or a statement of non-opposition to the pending motion within

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fourteen days. In that same order, plaintiff was advised of the requirements for filing an

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opposition to the pending motion and that failure to oppose such a motion would be deemed as

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consent to have the: (a) pending motion granted; (b) action dismissed for lack of prosecution; and
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(c) action dismissed based on plaintiff’s failure to comply with these rules and a court order.

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Plaintiff was also informed that failure to file an opposition would result in the dismissal of this

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action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (ECF No. 71.)

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The fourteen day period has now expired and plaintiff has not filed an opposition or
otherwise responded to the court’s order.

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“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an

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action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258,

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1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a

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court order the district court must weigh five factors including: ‘(1) the public's interest in

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expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of

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prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits;

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and (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting

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Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46

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F.3d 52, 53 (9th Cir. 1995).

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In determining to recommend that this action be dismissed, the court has considered the

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five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal

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of this action. The action has been pending for over two and one-half years, and has reached the

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stage, set by the court’s March 7, 2014 scheduling order, for resolution of dispositive motions

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and, if necessary, preparation for pretrial conference and jury trial. (ECF No. 33.) Plaintiff’s

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failure to comply with the Local Rules and the court’s March 4, 2015 order suggests that he has

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abandoned this action and that further time spent by the court thereon will consume scarce

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judicial resources in addressing litigation which plaintiff demonstrates no intention to pursue.

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Under the circumstances of this case, the third factor, prejudice to defendant from

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plaintiff’s failure to oppose the motion, also favors dismissal. Plaintiff’s failure to oppose the

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motion prevents defendant from addressing plaintiff’s substantive opposition, and would delay

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resolution of this action, thereby causing defendant to incur additional time and expense.

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The fifth factor also favors dismissal. The court has advised plaintiff of the requirements

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under the Local Rules and granted ample additional time to oppose the pending motion, all to no

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avail. The court finds no suitable alternative to dismissal of this action.

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The fourth factor, public policy favoring disposition of cases on their merits, weighs

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against dismissal of this action as a sanction. However, for the reasons set forth supra, the first,

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second, third, and fifth factors strongly support dismissal. Under the circumstances of this case,

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those factors outweigh the general public policy favoring disposition of cases on their merits. See

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Ferdik, 963 F.2d at 1263.

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For the foregoing reasons, IT IS HEREBY ORDERED that this action is dismissed

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without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

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Dated: March 26, 2015

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/hend2317.dsm.nop

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